Power Asymmetries and the Origin of Constitutions: Latin America, 1987

1 Power Asymmetries and the Origin of Constitutions: Latin America, 1987-2009 Javier Corrales Amherst College [email protected] June 2009 12,200 words 2 Abstract This article explores the origins of constitutions, and within them, levels of power concentration in the Executive branch. By looking at the 10 cases of constitutional rewrite in Latin America and several cases of aborted change since the 1980s, I develop a theory of constitutional change based on the notion of power asymmetries, defined as the power differential between incumbents and opposition forces at the negotiations. Under conditions of reduced power asymmetry, i.e., when both incumbents and opposition forces enjoy comparable levels of power, constituent assemblies are more likely yield constitutions that curtail presidential powers relative to the status quo. When the opposition is weak, assemblies will instead expand presidential powers. When the incumbent is weak, he or she will abort the process of constitutional rewrite. I conclude with a brief discussion of how this finding challenges some structuralist prescriptions for democratic renewal. 3 This article addresses two questions that are central to comparativists in general and Latin Americanists in particular. First, what are the origins of institutions, and specifically, constitutions? Significant research exists on the effects of different types of institutions, even constitutions,1 but less is known about their origins. 2 Second, what are the origins of different forms of presidential powers in new constitutions? Research has shown that democratic constitutions vary according to how much power they grant to the executive branch.3 But less is known about the conditions that give rise to such variation. This article examines these two questions by looking at the experience of Latin America. The region is known worldwide as the land of presidentialism. It should also be known as the land of constitutional rewrite. Since the transition to democracy in the late 1970s, the region has seen ten cases of major constitutional rewrite:4 Nicaragua (1987), Brazil (1988), Paraguay 1 For example, Reynolds 2002; Persson and Tabellini 2003. 2 Research on the origins of constitutions is in its infancy. For Latin America, the best papers are Negretto (2009), Nolte (2009) and Hartlyn and Luna (2009). 3 Shugart and Carey 1992. 4 Constitutional change occurs through two mechanisms: complete rewrites (replacement) and amendments. This paper looks at rewrites only, although change through amendment has been significant. Nolte, for instance, counts 312 amendments in Latin America between 1978- 2008. This paper will not look at the amendment process since it “responds to a different logic:” amendments are narrower in scope, are approved by a smaller number of actors 4 (1991), Colombia (1991), Argentina (1994), Peru (1995), Ecuador (1997), Venezuela (1999), Ecuador (2008), and Bolivia (2009). 5 All these post-transition rewrites occurred through highly participatory processes, that is, through constituent assemblies composed of elected delegates, rather than by negotiations among a restricted circle of elites. 6 None of these assemblies abolished presidentialism. But the resulting documents changed presidential powers in different directions. Some assemblies expanded presidential powers relative to the status quo; others hardly changed, while still others reduced presidential powers. These cases thus provide an opportunity to study the factors that give rise to constitutions, and within each constitution, levels of power concentration, while controlling for historical era and region. I will argue that this variation in presidential powers is the result of power asymmetries between incumbent ( I) and opposition ( O) forces. I define power asymmetry as the power differential between these actors. At the most basic level, cases can display three forms of asymmetry: I and O can have comparable levels of power (reduced asymmetry); I can be far stronger than O (large pro-I asymmetry); or O can be far stronger than I (negative, or pro-O (usually, the Executive branch in conjunction with a few parliamentarians, and tend to be mostly about policy- related matters (see Nolte 2009:8; see also Hartlyn and Luna 2009). 5 The 1983 El Salvador and 1985 Guatemala constitutional rewrites are not included because they were enacted under authoritarian settings (a non-elected government). 6 On the different ways in which constitutions can change, especially the distinction among legislature-based, constituent assembly-based, and president-based changes, see Elkins, Ginsburg and Blount 2009. 5 asymmetry). My argument is that conditions of reduced asymmetry yield constitutions that lessen presidential powers. Large asymmetry, in contrast, yields constitutions that expand presidential powers, and negative asymmetry increases the chances of I aborting constitutional rewrites. These propositions are based on the premise that, in the politics of constitutional change, Is prefer expanding presidential powers, while Os prefer instead to expand the powers of non-Executive branches. In short, power asymmetries determine each actor’s bargaining power, and thus, the incidence and content of constitutions. I. Constitutions as Pacts A fruitful starting point for generating a theory about the origins and content of constitutions is to draw from the literature on democratic pacts, which flourished in the late 1980s when transitology, or the study of transitions to democracy, was in vogue. The literature defines pacts as any agreement or compromise among political forces. Pacts can be as simple as a document of understanding about procedures or policies, or they can be as encompassing as a national constitution. A constitution, in turn, can be defined as the “codes of norms which aspire to regulate the allocation of powers, functions, and duties among the various agencies and officers of government, and to define the relationship between these and the public. Like pacts, constitutions typically emerge as a result of negotiations among actors with different bargaining power. Also like pacts, democratic constitutions are quintessential functional institutions: actors draft and sign them hoping restrain their counterparts and mitigate their own political 6 insecurity. Because pacts are meant to serve as antidotes to polarization and mutual suspicion, they help pave the way for democratization.7 They are also a mechanism through which actors offer concessions to their opponents in return for some gains.8 What determines whether these constitutional pacts will emerge, and whether they will in fact offer solutions to political insecurity? The theoretical challenge is to specify the conditions that generate the different strategies that actors adopt when making pacts,9 or for our purposes, constitutions. Constitutions can take multiple forms and occur in very diverse political settings. Yet, there is one simple distinction in pact-making that shape the key contours of the outcome: the balance of forces among signatories. If the balance of power among signatories is deeply asymmetrical, the constitution either does not get rewritten, or if changed, becomes intensely biased toward I’s preference. II. Pacts as Bargaining Outcomes Arguments about successful pact bargaining are predicated on four basic claims. First, successful democratic pact-making, in fact, all forms of rights-granting, depend on the strategic interaction between two sides of elites—namely, Is and Os.10 Second, pact-making depends on 7 O'Donnell and Schmitter 1986; Di Palma 1990; Karl 1990, 1-23; Karl and Schmitter 1991, 269- 84; Przeworski 1991; Reynolds 2002. 8 Acemoglu and Robinson 2006. 9 See Snyder and Mahoney 1999. 10 Przeworski 1991; Higley and Gunther 1992; Tilly 1992; Negretto 1998; Tilly 1998. 7 the prevalence of soft-liners on each side.11 Soft-liners are actors who prefer to deal with opponents through peaceful, rule-bound competition rather than through open confrontation or noncooperation.12 Third, successful pact-making depends on “mutual guarantees.” Each actor must offer guarantees that it will not threaten the “vital interests” of counterparts.13 And finally, as a corollary to the previous point, the most important guarantee that must be offered is “credible bounds on the behavior of political officials.”14 Yet, this picture, however rich, is theoretically incomplete. First, except for the proposition that soft-line strategies must prevail, these arguments are mostly prescriptive, outlining the contours of a successful pact, rather than the conditions that lead to their emergence. Second, the prevalence of soft-liners is not enough to explain the propensity of pacts to yield condition four; namely, lowering the stakes of holding office. There is no question that democratic pact-making requires Is to adopt a soft-line position: it must agree to offer concessions to opponents and, more crucially, accept rules of self-restraint. But I will only agree to rules of self-restraint if it feels sufficiently pressured to do so. As Kantor 15 argued decades ago in his study of Latin American constitutions, the way to limit the power of the president is 11 O'Donnell and Schmitter 1986. 12 Linz 1978. 13 Karl 1990; Karl and Schmitter 1991. 14 Schedler, Plattner et al. 1999; North, Summerhill et al. 2000, 23-29; Weingast 2004. 15 Kantor 1977. 8 to create “competing centres of power.” For those power centers to emerge, O must be relatively strong (an institutional condition) and willing to exert

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